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In re Grand Jury Subpoena Served Upon Pedro Archuleta

august 19 1977 opinion: July 22, 1977.

IN THE MATTER OF THE GRAND JURY SUBPOENA SERVED UPON PEDRO ARCHULETA


Appeal from a judgment of civil contempt in the Southern District of New York, Owen, J., for refusing without just cause to answer questions before a grand jury. Affirmed.

Waterman and Meskill, Circuit Judges, and Albert W. Coffrin, District Judge.*fn*

Author: Meskill

MESKILL, Circuit Judge:

Pedro Archuleta, the appellant here, was found to be in civil contempt for refusing to answer questions put to him by a grand jury empanelled in the Southern District of New York. The order of contempt, issued by Judge Owen, remanded Archuleta until he purged himself of his contempt or until the term of the grand jury expires. 28 U.S.C. § 1826(a). Because of the time limitation of 28 U.S.C. § 1826(b), we affirmed the order of the district court on July 22, 1977;*fn1 this opinion explains the basis of our decision.

On January 24, 1975, a bomb exploded in Fraunces Tavern, a restaurant in New York City. Four people were killed, and fifty-three were injured. A group known as Fuerzas Armadas de Liberacion Nacional Puertorriquena, or "FALN," which seeks independence for Puerto Rico, claimed responsibility for this act of terrorism. A number of subsequent bombings have been traced to the FALN.

In April, 1975, a grand jury was empanelled in the Southern District of New York to investigate these bombings. The term of that grand jury expired in October, 1976. A second grand jury, empanelled to investigate the same crimes, is now sitting.

In November, 1976, a "bomb factory" was discovered in an apartment in Chicago, owned by one Carlos Torres. Evidence was found there linking Torres, who is now a fugitive, to the FALN. Searchers also found a letter from a church in San Antonio, Texas, to Maria Cueto, the Executive Director of The National Commission on Hispanic Affairs of The Protestant Episcopal Church. Miss Cueto and her secretary, Raisa Nemikin were called before the grand jury, and refused to testify concerning the whereabouts of Torres, after being ordered to do so. See In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977). They were held in civil contempt by the district court, and were remanded until they testified. This Court affirmed the judgment of contempt, In re Cueto, 554 F.2d 14 (2d Cir. 1977), and they are presently incarcerated.

Shortly after our decision in Cueto, supra, a grand jury subpoena was served upon the appellant. He had been a member of The National Commission on Hispanic Affairs; he had also been named in various newspaper accounts as a possible supplier of dynamite to the FALN. Motions to quash the subpoena were denied by Judge Lasker. Before the grand jury, he was asked the following questions:

(1) Did you provide dynamite to anyone you knew to be in a group called the FALN at any time prior to January 24, 1975?

(2) Do you know the source of dynamite explosives used at the bombing of Fraunces Tavern?

(3) Do you know anyone who is responsible for the bombing at Fraunces Tavern?

(4) In early 1968 did you yourself steal any dynamite from the Heron Dam Project site near Parkview, New Mexico?

Archuleta invoked his Fifth Amendment immunity, and refused to testify. The prosecution then applied for, and obtained, from Judge Brieant, an order of immunity. Judge Brieant also entered a protective order designed to avoid public disclosure of the grand jury proceedings.

Thereafter, Archuleta refused a second time to answer these four questions. After the foreman had expressly directed him to answer, the questions were asked a third time. Rather than responding, appellant made a series of political speeches explaining his refusal to testify. After polling the jury to determine that they all felt the questions to be "reasonably necessary and proper," Judge Brieant directed appellant to testify. When Archuleta persisted in his ...


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